Sentencing of the mentally impaired in WA: DPP v Pindan

Cheyne Beetham

Western Australia

The Supreme Court of Western Australia has dismissed an application by a mentally impaired man, Mr Adrian Pindan, to stay proceedings against him in which the Director of Public Prosecutions (‘the DPP’) sought orders that Mr Pindan be declared a serious danger to the community and be detained in custody for an indefinite period for control, care or treatment, pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (‘the Act’). See Director of Public Prosecutions (WA) v Pindan [2012] WASC 13 (13 January 2012).

When the DPP’s application was made, Mr Pindan was serving a sentence of imprisonment for a serious sexual offence. Since conviction for that offence, Mr Pindan has been the subject of several psychiatric reports which established that he has developed a permanent cognitive impairment. The result of these findings is that if, upon release, Mr Pindan committed another serious criminal offence he would not be fit to stand trial under the terms of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Consequently, the DPP sought a declaration and an order for indefinite detention under the Act.

Mr Pindan argued that the DPP’s application was an abuse of process for two reasons. First, it was ‘foredoomed to fail’. Mr Pindan submitted that the Act did not apply to offenders such as him, who because of mental impairment could never stand trial for, or be convicted of, a serious criminal offence. Mr Pindan argued that the term ‘offence’ in the Act carried with it the implication that an offender must be liable to be convicted of that offence before the legislation could apply. Justice Jenkins rejected this submission saying that the definition of offence focused on the doing of acts or the making of omissions of a certain character or in certain circumstances, rather than on actual criminal liability for, or the conviction for, the doing of such acts or the making of such omissions.

Additionally, Mr Pindan argued that the DPP’s application was an abuse of process because he could not participate. Justice Jenkins rejected this, saying the determinative factor in deciding the matter was the intention of parliament as disclosed by the Act. In this regards, Jenkins J held that parliament had intended and provided that an ‘offender’ who is a ‘serious danger to the community’, whether or not they are mentally impaired or fit to stand trial on any serious criminal offence in the future, should be subject to orders under the Act.

In reaching these conclusions, Jenkins J expressed the view that her opinion as to the justice, propriety or utility of the law is ‘immaterial’, citing Nicholas v The Queen (1998) 193 CLR 173. Similarly in this vein, Jenkins J noted that, on her construction of the Act, to hold in favour of Mr Pindan would be contrary to her Honour’s judicial duty; to so order would be to assert a judicial veto over the will of parliament as expressed in a valid statute.

Regardless of whether Justice Jenkins was, in these passages, expressing tacit distaste for the Act or pinning her colours to the flag of judicial conservatism, her Honour declined to stay the proceedings.